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The United States' Defend Forward Cyber Strategy: A Comprehensive Legal Assessment

by Jack Goldsmithvia Oxford University Press
Thursday, May 19, 2022

The United States’ new Defend Forward Strategy constitutes a major change in how the nation with the world’s most powerful cyber arsenal views when and how this arsenal should be deployed. It is a large step in the direction of more aggressive action in cyberspace—albeit for defensive ends. The United States has not attempted to hide this new and more aggressive cyber posture. To the contrary, it has telegraphed the change, probably in order to enhance deterrence. But the telegraphing has taken place at a highly abstract level. Very little is known about precisely what types of operations Defend Forward entails. And while the US government has asserted that Defend Forward is consistent with domestic and international law, it has not explained how the new strategy overcomes the perceived legal constraints that previously tempered US responses to cyber intrusions and threats. This volume aims to fill these gaps, and to bring Defend Forward out of the shadows, so to speak, both factually and legally.

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The Business Of Knowing: Private Market Data And Contemporary Intelligence

by Klon Kitchenvia Aegis Paper Series
Tuesday, November 30, 2021

Many US federal agencies are purchasing private market data. This paper argues that US government access to at least some private market data—and the limiting of foreign access to this same information—is essential for national security. It also argues, however, for a refined awareness that acknowledges the privacy we have already lost and that implements greater government oversight and accountability.

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Buying Data And The Fourth Amendment

by Orin S. Kerrvia Aegis Paper Series
Wednesday, November 17, 2021

Can governments purchase user records as an end run around the warrant requirement imposed by Carpenter v. United States? Fourth Amendment law suggests they can. Companies have common authority over their business records, which allows them to consent to a government search of their databases even when their users oppose it. A voluntary sale manifests consent, permitting the government to buy access to Carpenter-protected records without warrant or cause.

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A Gig Surveillance Economy

by Elizabeth E. Johvia Aegis Paper Series
Wednesday, November 10, 2021

Gig surveillance work is short-term, freelance, temporary surveillance that generates data later sold for profit. This essay describes gig surveillance work, what potential legal and policy questions it raises, and what it means for further entrenchment of reliance by the government on the private information market.

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Facial Recognition As A Less Bad Option

by Jane Bambauervia Aegis Paper Series
Thursday, November 4, 2021

This essay defends the police use of facial recognition technology to identify suspects in crime footage or to locate individuals with outstanding warrants. The perils that flow from facial recognition can be mitigated through sensible limits without banning the technology, and in any case, the risks of facial recognition are less bad than the options police have without its use.

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Understanding Police Reliance On Private Data

by Farhang Heydarivia Aegis Paper Series
Thursday, October 7, 2021

Private entities play a substantial and growing role across the criminal system. It is both impractical and undesirable to eliminate all private influences. Instead, policy makers can distinguish beneficial private influences from harmful ones by focusing on those private entities with the closest relationship to law enforcement. These entities have fewer incentives to guard against law enforcement overreach and thus deserve heightened scrutiny.

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Modern-day General Warrants And The Challenge Of Protecting Third-party Privacy Rights In Mass, Suspicionless Searches Of Consumer Databases

by Jennifer Lynchvia Aegis Paper Series
Thursday, September 23, 2021

This article describes the problem of suspicionless searches of consumer databases, explains the threat these searches pose to privacy interests, argues that the legal arguments put forth by law enforcement in defense of these practices are flawed, and suggests what should be done about the problem, both in courts and in the legislature.

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Adapting To The Cyber Domain: Comparing US And UK Institutional, Legal, And Policy Innovations

by Robert Chesneyvia Aegis Paper Series
Tuesday, May 25, 2021

This article explores the origins and evolution of the institutional, policy, and legal frameworks that define the defensive and offensive aspects of UK and US cyber strategies. There is a strong degree of convergence, particularly from a defense perspective, but there are also important variations, especially in the degree to which the countries’ most capable operators—the National Security Agency and the Government Communications Headquarters—are integrated into non-intelligence activities.

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“Defend Forward” And Sovereignty

by Jack Goldsmith, Alex Loomisvia Aegis Paper Series
Thursday, April 29, 2021

This essay argues that the discrete rules articulated in the commentary accompanying Rule 4 of the Tallinn Manual 2.0 regarding state sovereignty in cyberspace do not reflect customary international law. It considers the validity of the Rule 4 commentary primarily in the context of the United States’ “defend forward” strategy for disrupting cyber threats.

EssaysAnalysis and Commentary

Chinese Technology Platforms Operating In The United States

by Gary P. Corn, Jennifer Daskal, Jack Goldsmith, John C. "Chris" Inglis, Paul Rosenzweig, Samm Sacks, Bruce Schneier, Alex Stamos, Vincent Stewartvia Hoover Institution Press
Thursday, February 11, 2021

The Trump administration took various steps to effectively ban TikTok, WeChat, and other Chinese-owned apps from operating in the United States, at least in their current forms. The primary justification for doing so was national security. Yet the presence of these apps and related internet platforms presents a range of risks not traditionally associated with national security, including data privacy, freedom of speech, and economic competitiveness, and potential responses raise multiple considerations. This report offers a framework for both assessing and responding to the challenges of Chinese-owned platforms operating in the United States.

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Aegis on Lawfare

 
Aegis explores legal and policy issues at the intersection of technology and national security.  Published in partnership with Lawfare, it features long-form essays of the working group, examines major new books in the field, and carries podcasts and videos or the working group’s events in Washington and Stanford.

Security by the Book Podcasts

The Security by the Book podcast series features monthly interviews with authors of important, new national security-oriented books and publications.

In the News

Security By The Book With John J. Mearsheimer

Tuesday, October 9, 2018
Hoover Institution, Washington DC

The Hoover Institution hosted "Security by the Book with John J. Mearsheimer" on Tuesday, October 9, 2018 from 5:30pm - 6:30pm EST.

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In the News

Security By The Book: Habeas Corpus In Wartime With Amanda Tyler

Monday, May 14, 2018
Hoover Institution, Washington DC

The Hoover Institution hosted "Security by the Book: Habeas Corpus in Wartime with Amanda Tyler" on Monday, May 14, 2018 from 5:00pm - 6:30pm EST.

Event
In the News

A Discussion Of Tim Maurer's New Book: Cyber Mercenaries

Thursday, April 5, 2018
Hoover Institution, Washington DC

The Hoover Institution hosted "A Discussion of Tim Maurer's New Book: Cyber Mercenaries" on Thursday, April 5, 2018 from 5:30pm - 7:00pm EST.

Event
In the News

Security By The Book Featuring Amy Chua

Tuesday, March 13, 2018
Hoover Institution, Washington DC

The Hoover Institution hosted "Security by the Book featuring Amy Chua" on Tuesday, March 13, 2018 from 5:00pm - 7:00pm EST.

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In the News

Security By The Book: Max Boot's New Book, "The Road Not Taken"

Wednesday, February 28, 2018
Hoover Institution, Washington DC

The Hoover Institution hosted "Security by the Book: Max Boot's new book, 'The Road Not Taken,'" on Wednesday, February 28, 2018 from 5:00pm - 7:00pm EST.

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In the News

Listening In: Cybersecurity In An Insecure Age

Wednesday, November 1, 2017
Hoover Institution, Washington DC

The Hoover Institution hosted "Listening In: Cybersecurity in an Insecure Age" on Wednesday, November 1, 2017 from 5:00pm - 7:00pm EST.

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Featured

The Internationalists: How A Radical Plan To Outlaw War Remade The World

Monday, September 11, 2017
Hoover Institution, Washington DC

The Hoover Institution hosted "The Internationalists: How a Radical Plan to Outlaw War Remade the World" on Monday, September 11, 2017 from 5:00pm - 7:00pm EST.

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Technology Giants, Sovereign Power, And Surveillance

Wednesday, July 26, 2017
Hoover Institution, Washington DC

The Hoover Institution’s Working Group on National Security, Technology, and Law hosts a conference on July 26, 2017 titled, Technology Giants, Sovereign Power, and Surveillance.

Event
In the News

Destined For War: Can America And China Escape Thucydides's Trap?

Wednesday, July 12, 2017
Hoover Institution, Washington DC

The Hoover Institution hosted "Destined for War: Can America and China Escape Thucydides's Trap?" on Wednesday, July 12, 2017 from 5:00pm - 7:00pm EST.

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In the News

The Ideas Industry: How Pessimists, Partisans, And Plutocrats Are Transforming The Marketplace Of Ideas

Thursday, June 15, 2017
Hoover Institution, Washington DC

The Hoover Institution hosted "The Ideas Industry: How Pessimists, Partisans, and Plutocrats are Transforming the Marketplace of Ideas" on Thursday, June 15, 2017 from 5:00pm - 7:00pm EST.

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The Jean Perkins Foundation Working Group on National Security, Technology, and Law brings together national and international specialists with broad interdisciplinary expertise to analyze how technology affects national security and national security law and how governments can use that technology to defend themselves, consistent with constitutional values and the rule of law.

The group will focus on a broad range of interests, from surveillance to counterterrorism to the dramatic impact that rapid technological change—digitalization, computerization, miniaturization, and automaticity—are having on national security and national security law. Topics include cybersecurity, the rise of drones and autonomous weapons systems, and the need for and dangers of state surveillance. The group’s output will also be published on the Lawfare blog, which covers the merits of the underlying legal and policy debates of actions taken or contemplated to protect the nation and the nation’s laws and legal institutions.

Jack Goldsmith is the chair of the Jean Perkins Foundation Working Group on National Security, Technology, and Law.